Subcommittee of the Standing Committee on Finance on Bill C-38 Committee on May 31st, 2012

[Rachel Forbes]

I think it discredits the entire review process for pipelines and tanker projects. You could spend your 24 months reviewing it, and have economists, scientists, and first nations—everybody involved—have the NEB make a recommendation and then the government completely overturns it. So if you're talking about a waste of resources and people's time, then that would be an absolutely massive one.

[Jamie Nicholls, NDP, Vaudreuil—Soulanges, QC]

Given the misguided economic principles of a politician hell-bent on believing that the export of our raw natural resources is the best way to go, contrary to all international bodies such as the World Economic Forum, that 24-hour timeframe where they're fast-tracking everything might lead to very poor economic, environmental, and social decisions. Is that not the case?

[Rachel Forbes]

I'd agree with that. For example, the current review process for the notorious Enbridge Northern Gateway pipeline project doesn't look at long-term costs. You have to consider seepage as well as spills. It doesn't look at downstream effects. We're not looking at the full economic, social, cultural, and environmental costs of that project. I think it's a short-sighted one. I think that's why you have already seen a lot of parties remove themselves from it, as they don't believe it's legitimate.

[Jamie Nicholls, NDP, Vaudreuil—Soulanges, QC]

This bill adds powers to the NEB to establish violations and set fines of up to $100,000 for a company. The existing NEB Act already allows for criminal prosecution of offences.

Considering that a company charged with a violation cannot be charged with an offence, do you have any concerns that this change would weaken enforcement?

[Rachel Forbes]

I don't know that it would weaken enforcement, necessarily. I think there are bigger problems with addressing spills. Who's paying for them? Who's liable for them? We have a big problem with both the national and international liability insurance funds. They don't actually cover the costs that would result from a significant spill, whether it's on land or on the coast. We have one happening right now, and taxpayers are going to end up with a lot of the cost of cleanup. And remember, cleanup is not possible for a lot of those types of spills. It's a huge risk that no amount of enforcement or safety enhancements can effectively address.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Ms. Forbes.

Mr. Nicholls, your time has expired.

We now move on to Mr. Kamp.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

Thank you, Mr. Chair, and my thanks to you witnesses for appearing. We appreciate the time you've taken out of your busy schedules.

Let me begin with Mr. Maas. I want to make sure I understand what you're saying. Is it your view that for every piece of water that has a fish in it, that habitat needs to be protected?

[Tony Maas]

Yes, it is.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

Would it surprise you that historically that has not been the view of the Government of Canada, or within the policy framework of the Government of Canada?

Let me just read from what is still in place. “The Department of Fisheries and Oceans Policy for the Management of Fish Habitat”, 1986, says:

The policy applies to those habitats directly or indirectly supporting those fish stocks or populations that sustain commercial, recreational or Native fishing activities of benefit to Canadians.

It goes on:

In accordance with this philosophy, the policy will not necessarily be applied to all places where fish are found in Canada, but it will be applied as required in support of fisheries resource conservation.

I want your comment on that, but let me add that a supporting policy document a dozen or so years later, in 1998, said this about section 35 of the act, about how that's to be interpreted:

Section 35 is not about the protection of fish habitat for the benefit of fish, but of fisheries.

It goes on to talk about those fisheries: recreational, commercial, and aboriginal.

What do you think of this?

[Tony Maas]

You asked me if I believed if all waters that contain fisheries—

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

All waters that contained a fish, I said.

[Tony Maas]

—should be afforded protection, which is different from a discussion of what the existing policy framework is. I said it was far from perfect. I'm a practical person. I recognize we're not going to protect all fisheries or all waters where a single fish exists. We need to be able to set priorities, and we need to do that on a scientific basis, with clear criteria. I see no criteria in the legislation of what constitutes a decision to list a fishery or body of water as a commercial, recreational, or aboriginal—

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

I'm sorry to interrupt. My time is short.

We realize as well that we do not have the resources to protect every marine species and the habitat that supports it. This legislation is focusing on what this policy document said about these fisheries, namely, these commercial, recreational, and aboriginal fisheries that are of benefit to Canadians.

You're saying that's misguided, or do you support it?

[Tony Maas]

I'm saying that if there were some substance for me to have in hand behind the criteria that will exist, or a process to develop them—and that's what you're saying, that the existing policy documents in your hand are the proposed criteria against which we'll define these fisheries, then.... I think what we're looking for is an opportunity to engage in a conversation about where to put our priorities around limited resources, so that we can develop constructive collaborative solutions.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

We look forward to doing that. To be clear, what I'm saying is that this was an interpretation of section 35 of the act, which everyone seems to want to keep. We're actually enshrining in legislation the focus that is in the current habitat policy that was the historical interpretation of section 35.

Do I have some more time, Mr. Chair?

[The Chair, Conservative, Blaine Calkins]

By all means. I'll let you know.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

I'm sorry about that.

[The Chair, Conservative, Blaine Calkins]

Keep going.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

I know partly what you don't agree with. Let me see if I can find some things that you do like in Bill C-38. There's clause 147 where it aligns the Fisheries Act with the Environmental Enforcement Act, so there will be increased fines, minimum fines and so on. Nod if you like this. Okay, he likes it.

There's a section on creating enforceable conditions for ministerial authorizations, because up till now we had no legal authority to make somebody do what they said they would do when they got the authorization. Do you think that's a good idea?

[Tony Maas]

I'll have to add another option to the answer to this: I'm not familiar with that element of the budget bill.

[The Chair, Conservative, Blaine Calkins]

Now you're out of time.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

I was just getting—

[The Chair, Conservative, Blaine Calkins]

I know. We heard you in question period today, so we think you are just getting going.

Mr. Toone for up to five minutes.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

I'll continue from where Mr. Kamp left off.

Mr. Maas, let's get back to the question of serious harm. How do you feel about the question that we've now got a concept that seems largely undefined and highly discretionary, in my opinion? Can you elaborate as to where this new definition might bring us?

[Tony Maas]

I can't even begin to speculate. Again, that's a recognition or understanding that things will be forthcoming in regulations. As I said in my introductory remarks, in my view such underpinning terms as changing a test essentially for the validity of an authorization or prohibition from one that we understand and recognize to a new term that has yet to be defined makes it's very difficult to give effective support to the changes relating to that term. It's just very difficult to do that.